National High Court Decision 2008Du2142 ( October 14, 2008)

Even the embezzlement of corporate funds of the representative director shall not be deemed an outflow from the company in special circumstances.

In light of the fact that a corporation has filed an application for compensation order equivalent to the amount of embezzlement after filing a criminal charge against the representative director, and that it has dismissed from the office of the representative director, it is reasonable to deem that the corporation has not implicitly or ratified the act of embezzlement of the representative director, and that it has a damage claim from embezzlement. Therefore, the amount equivalent to the embezzlement cannot be deemed that the

The contents of the decision shall be the same as attached.

Article 66 (Determination and Correction)

Article 67 (Disposal of Income)

1. The Defendant’s imposition of KRW 965,43,480 on March 3, 2008 against the Plaintiff of KRW 965,43,480 on earned income for the year 2003, KRW 569,856,00 on earned income for the year 2004, and KRW 4,920,160 on earned income for the year 205 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is a company established on March 26, 2003 for the purpose of running the business related to the construction and operation of the ○○○○ Private History, and the Korea ○○ Corporation owns 25% shares out of issued shares.

B. From January 2003 to January 6, 2005, Kim Jong-seok worked as the representative director of the Plaintiff company.

The seller, etc. received a total of KRW 4,273,649,000 as the pre-sale contract deposit and the security deposit for vicarious sale, and embezzled it without depositing it into the corporate account. As a result, Kim○-maid is specified in the Seoul Central District Court (2005Gohap567) on July 28, 2005.

It was sentenced to a suspended sentence of 4 years and 6 months for criminal facts such as violation of the Act on the Aggravated Punishment, etc. of Crimes (Embezzlement), and the above judgment became final and conclusive as the appeal was withdrawn.

C. Accordingly, the defendant included the embezzlement amount of Kim○k's Kim in the calculation of earnings, disposed of as bonus, and on May 26, 2007.

Although the Plaintiff notified the change in the amount of income, on March 3, 2008, the Plaintiff imposed on the Plaintiff KRW 965,43,480 as earned income tax for the year 2003, KRW 569,856,00 as earned income tax for the year 2004, and KRW 4,920,160 as earned income tax for the year 205 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap 1, 2, 10 evidence (including each natural disaster) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is premised on the fact that the representative director of the Plaintiff Company embezzleds the Plaintiff Company’s assets, and the amount of embezzlement is attributed to the representative director Kim Jong-soo. However, since the Plaintiff Company’s losses have been completely recovered after it, it cannot be disposed of as bonus. Moreover, it is unfair to conduct disposal of the Plaintiff without any income due to the Plaintiff’s error or omission in the details of the Plaintiff’s corporate tax, and it also goes against the principle of substantial taxation. ② In the event the Plaintiff’s employees embezzled the company’s assets, the Plaintiff Company, in principle, has the right to claim for restitution of unjust enrichment or claim for damages against the embezzlement, and thus, the company’s assets are reserved in the company as a matter of principle. In exceptional, the company’s disposal of the company’s assets is illegal only in cases where there are circumstances such as: (a) the company’s act of embezzlement is objectively expressed in advance or later; and (b) the company’s act of embezzlement and embezzlement of the amount of bonus to the Plaintiff Company; and (c) the Plaintiff Company’s employees’s bonus and the amount of this case’s bonus can be confirmed.

B. Relevant statutes

Article 66 (Determination and Correction)

Article 67 (Disposal of Income)

Article 103 (Determination and Correction)

Article 106 (Disposition of Income)

Article 127 (Liability for Withholding Tax)

(c)a recognition;

(1) On January 2003, 2003, ○○○○○ Construction Project Co., Ltd. (hereinafter “○○ Company”) (hereinafter “○○”) established and operated a corporation to be in charge of the establishment and operation of the ○○○○○○○ Private Capital Company as a corporation, and entered into an agreement with the ○○○○ Bank Co., Ltd. with the following contents (Provided, That at the time of the conclusion of this agreement, the ○○○ Company was changed to the ○○ Corporation as of the date of the conclusion of this agreement).

【Agreement】

Article 2 (Incorporation of Corporation under Project Implementation)

2. The capital stock of a project implementation corporation shall be 2 billion won; the equity interest of a corporation shall be 25% by the ○ enterprise; 2% by the ○ enterprise designated by the ○ enterprise; 25% by the ○○ enterprise; 5% by the ○○ enterprise; and 43% by any other individual or corporation.

Article 3 (Composition of Executives and Employees of Project Implementation Corporations)

1. The board of directors of a project implementation corporation shall be composed of five directors, one person designated by ○○○○ and one person designated by ○○○○○○, and one person designated by ○○○○○○, and Kim○○ shall take charge of the representative director; and

2. A project implementation corporation shall have one standing auditor, who shall be appointed on the recommendation of the ○○ Office; and

Article 4 (Apportionment of Responsibility for Project Implementation)

1. The ○○ Enterprise shall bear the following jacks to ensure that the ○○○ Private Partnership Promotion Project by the project implementation corporation is successful:

(1) It is not only as the project supervisor of ○○○ private-private partnership, but also as the project supervisor of ○○○○ private-private partnership, and as well as as all jacks on construction

(2) No transfer or offer as security the shares of a project implementation corporation (25 per cent of the shares of ○○ Company, 2 per cent of the shares held by the person designated by ○○ Company, and 5 per cent of the shares held by ○○○○ Company) shall be made

2. The Kim Jong-m is a representative director of a project implementation corporation who is the following jacks to ensure that the project for promoting the ○○○ private-private partnership is successful:

(1) A project implementation corporation is responsible for all financing required to establish and operate the project implementation corporation and promote the private-private partnership project.

(2) As the representative director of a project implementation corporation, he/she is responsible for legitimate operation in accordance with the project implementation agreement entered into between ○○○ and ○○○○ Company by introducing transparent and fair management techniques on the management of ○○○○ Private History.

(4) As the representative of the project implementation corporation, he/she shall be in charge of the sale and lease of the ○○○ Private History, and shall be held responsible to prevent any civil petition or unlawful matters, and shall also resign from the office of representative director at the same time.

(2) From March 26, 2003 to January 2006, the composition and change of the board of directors of the Plaintiff Company shall be:

same as this section.

(3) In addition, around 2003, 25% of the shares of the Plaintiff Company were owned by ○○ and ○○ Company, 10% of the shares of the Plaintiff Company, respectively, and there was no change in the shares by 2005.

(4) While working as the representative director of the Plaintiff company and raising funds from those who were employed by the Plaintiff company from January 6, 2003 to January 6, 2005, Kim Jong-k used 4,273,649,000 won as a store sales contract deposit and a security deposit for vicarious sales, and was charged for embezzlement, and was sentenced to a suspended sentence of 4 years from July 28, 2005 by imprisonment with prison labor for 2 years and 6 months from the Seoul Central District Court (2005Da5677). The appeal was filed by the Seoul High Court (Seoul High Court 2005No1711) and then (Seoul High Court 2005No1711).

On May 15, 2006, the appeal was withdrawn, and the above judgment became final and conclusive as it is.

(5) On February 16, 2006, the Plaintiff filed a criminal charge of embezzlement, etc. with the Seoul Central District Public Prosecutor's Office through the ○○○○○○○○ Office, and filed an application for an order for compensation of the amount equivalent to embezzlement in the above criminal complaint against the ○○○ Office on February 22, 2006, but was dismissed on April 21, 2006.

(6) On November 24, 2006, the Plaintiff dismissed the Kim ○ from office of the representative director.

(7) On the other hand, in the course of the criminal trial of Kim Il-kon, a certificate of deposit was submitted to the effect that Kim Il-kon completely recovered from the Plaintiff’s damage on July 11, 2005, and that this was taken into account, Kim Jong-kon was sentenced to a suspended sentence of the sentence of the previous year. However, it was found that the certificate of deposit for the recovery of damage was forged and submitted by the exchange between Kim Il-k, and that the above Kim Il-k and Cho Il-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k

[Ground of recognition] Facts without dispute, Gap 1-4, 10, 11, 13, 16, 29-40, Eul 3 and 4 (including each number), the purport of the whole pleadings

D. Determination

(1) As to the assertion that it cannot be disposed of as bonus since the damage to the plaintiff company was recovered, it is not clear that the representative director, etc. of the corporation used for the corporation's business from among the amount accrued to him/her by discharging the corporation's profits out of his/her own position constitutes bonus or temporary salary, barring special circumstances. The portion belonging to the representative director, etc. out of the outflow from the company constitutes bonus or temporary salary, barring special circumstances. Even if the income tax liability is established for the portion belonging to the representative director, etc., if the person to whom the income tax belongs belongs later returns the amount to the corporation, it cannot be affected by the failure to pay tax already accrued (see, e

Therefore, in the case of this case, even if Kim ○k's full recovery of the damage to the plaintiff, who is the victim of embezzlement, it cannot affect the tax liability for wage and salary income generated once. Thus, this part of the plaintiff's assertion is without merit without further review.

(2) Whether the substance over form principle, etc. is violated

(1) The corporation has no income to be disposed of due to the absence of errors or omissions in the details of its corporate tax;

Whether it is unfair that the disposition of income is made against such order and it is against the principle of actual taxation.

We examine.

Article 67 of the Corporate Tax Act provides that the amount included in the calculation of corporate tax shall be disposed of according to the person to whom the income is attributed as prescribed by the Presidential Decree, such as bonus, dividend, and other outflow from the company and internal reservation. Meanwhile, the representative standing contribution system under the Corporate Tax Act is not based on the fact that such income is generated to the representative, but it aims to ensure that certain facts which can be recognized as such act in order to prevent unfair acts under the tax law by a corporation should be considered as bonus to a de facto representative regardless of its substance (see, e.g., Supreme Court Decision 2005Du8030, Jan. 18, 2008). Accordingly, this part of the plaintiff's assertion on this premise is irrelevant to the error or omission of the details of corporate tax, and there is no reason to believe that this part of the plaintiff's assertion is without merit (In addition, although the plaintiff must complete the correction of corporate tax within one year from the filing deadline of the plaintiff's corporate tax under Article 103 (3) of the Enforcement Decree of the Corporate Tax Act, the plaintiff's report should not be applied within three years after the report.

(3) Whether the Plaintiff Company’s assets were out of the company

Unless there are special circumstances, the representative director or actual manager of a corporation's act of using the corporation's funds is not conducted under the premise of early recovery, and thus, it constitutes an outflow from the company as an expenditure itself (see, e.g., Supreme Court Decisions 98Du7350, Dec. 24, 199; 99Du3324, Sept. 14, 2001; 2001; 203Du3324, Sept. 23, 2008). "Special circumstances that cannot be viewed as not premised on recovery" shall be determined specifically and individually by taking into account all the circumstances, such as the actual status of the corporation within the representative director, etc., the principal agent of the embezzlement, etc., the degree of control over the corporation, the circumstances leading to the embezzlement, and whether it is difficult to deem that the representative director, etc. and the corporation's economic interests are in fact identical to the corporation's intent or not after the embezzlement. Such special circumstances must be proved (see, e.g., Supreme Court Decision 200323Du3737, Nov. 237, 2008).

First, as alleged by the plaintiff, whether Kim Jong-seok is merely an employee of the plaintiff company

On the other hand, it is reasonable to view that Kim Jong-m, the representative director of the Plaintiff company, was actually involved in the management as follows: (a) he did not only actively participated in the business from the beginning of the ○○○○○ ○○ ○ ○ ○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

itself constitutes a outflow from the company.

However, the above facts are as follows. ① Korea ○○ Corporation and ○○ Company, a public corporation, hold 25% shares of the Plaintiff’s issued shares, and the organization of the Plaintiff’s board of directors and the designation of full-time auditors based on the Korea ○○ Corporation and ○○ Company respectively. As such, it is difficult to deem that the intention of Kim ○○ is identical to the intent of the Plaintiff Company or that the economic interests between the Plaintiff Company and ○○○ was actually limited. ② In addition, in the process of the first instance trial, Kim ○ was embezzled from 4.2 billion won of the Plaintiff’s company’s assets to be embezzled and detained from embezzlement before the establishment of the Plaintiff Company, and submitted a false deposit certificate to ○○○○○○ Company’s damage claim to the Plaintiff Company was entirely recovered. Ultimately, the representative director, who did not interfere with the Plaintiff’s business promotion of the Plaintiff Company’s private interest, was still dismissed from the court of first instance on the premise that the Defendant’s act of embezzlement was still subject to criminal embezzlement of 20.

It shall not be deemed that it constitutes an outflow from the company.

Therefore, the instant disposition that is based on the premise that the assets of the amount equivalent to the embezzlement were released from the company is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and it is so decided as per Disposition with the assent of all Justices.

section 3.